Dipak v. Barr et al

Filing 7

MEMORANDUM ORDER: Directing plaintiff to amend petition. Pro Se Response due by 10/9/2020. Signed by Magistrate Judge Joseph H L Perez-Montes on 9/9/2020. (crt,Haik, K)

Case 1:20-cv-00788-DDD-JPM Document 7 Filed 09/09/20 Page 1 of 3 PageID #: 91

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
GHARTI DIPAK,
Petitioner

CIVIL DOCKET NO. 1:20-CV-00788-P

VERSUS

JUDGE DRELL

WILLIAM P. BARR, ET AL.,
Respondents

a

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241 (ECF Nos. 1, 5) filed by pro se Petitioner Gharti Dipak (“Dipak”) (A#
201740163). Dipak is a detainee in the custody of the Department of Homeland
Security (“DHS”) and Bureau of Immigration and Customs Enforcement (“ICE”)
housed at LaSalle Correctional Center (“LCC”). Dipak alleges in part that his custody
is unlawful under the Constitution and laws of the United States. ECF No. 5 at 6.
Because Dipak fails to allege why his removal is unlikely to occur in the
reasonably foreseeable future, he must AMEND his Petition.
I.

Background
Dipak is a native and citizen of Nepal. ECF No. 1 at 5. Dipak seeks a release

from custody because he has allegedly been in post-removal order detention for more
than six months. ECF No. 1 at 7.

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II.

Instructions to Amend
Under Zadvydas v. Davis, 533 U.S. 678 (2001), it is presumptively

constitutional for an immigration detainee to be detained six months past the 90-day
removal period following a final order of removal. Id. After the expiration of the sixmonth period, a detainee may seek his release from custody by demonstrating a “good
reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future.” Agyei–Kodie v. Holder, 418 F. App’x 317, 318 (5th Cir. 2011).
Not every detainee in custody will be entitled to automatic release after the expiration
of the six-month period under the scheme announced in Zadvydas.
In Andrade v. Gonzales, 459 F.3d 538 (5th Cir. 2006), the Fifth Circuit Court
of Appeals reiterated that the Supreme Court’s holding in Zadvydas creates no
specific limits on detention. In fact, a detainee may be held in confinement until it
has been determined that there is no significant likelihood of removal in the
reasonably foreseeable future. Id. at 543 (citing Zadvydas, 533 U.S. at 701). The
detainee bears the initial burden of proof to show that no such likelihood of removal
exists. Id.
Dipak alleges that he has been in post-removal detention for over one year.
ECF No. 5 at 5. But Dipak does not allege any reason why his removal to Nepal is
unlikely to occur in the reasonably foreseeable future. Dipak must provide factual
and evidentiary support for his claim.
Additionally, Dipak is instructed to provide the Court with a copy of any postremoval order custody reviews or decisions to continue detention that he has received.

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IT IS ORDERED that Dipak amend his Petition (ECF Nos. 1, 5) within thirty
(30) days of the filing of this Order to provide the information outlined above.
Failure to comply with this Order may result in dismissal of this action under
Rule 41(b) or 16(f) of the Federal Rules of Civil Procedure. Petitioner is further
required to notify the Court of any change in his address under Rule 41.3 of the Local
Rules for the Western District of Louisiana.
SIGNED on Wednesday, September 9, 2020.

__________________________________________
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE

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